B-1 'visitor' visa may be playing an increasing role in the IT industry, according to the suit

Indian software giant Infosys Technologies has been sued by an employee who says he refused to help the outsourcer get temporary B-1 visas for some workers.

To date, the B-1 visa hasn't played a prominent role in the long-running H-1B visa debate, but its role may change due to the lawsuit filed by Jack 'Jay' Palmer, an Infosys employee since 2008.

B1 business visas are intended for short-term uses, such as consulting with business associates, attending a business convention, settling an estate, negotiating a contract, or to install, service and repair commercial and industrial machinery.

According to B-1 visa rules, the holder can't be paid by a U.S. employer, and immigration attorneys note that it isn't intended to be used in ways that are similar to the H-1B visa. That's where Palmer's lawsuit comes in.

According to the lawsuit, Palmer, a principal consultant for the Infosys, attended a meeting in Bangalore in March, 2010 where Infosys management discussed ways "to 'creatively' get around the H-1B limitations."

The lawsuit, filed late last month, alleges that Infosys was sending workers holding B-1 visa to customer sites. Unlike H-1B visa rules, holders of B-1 visas are paid by the foreign entity and federal and state income taxes aren't withheld. Among the claims in the lawsuit, therefore, is that customers were overbilled for labor costs for these employees.

When Palmer was asked to write a letter stating "that the employee was coming to the United States for meetings rather than to work at a job," he contacted Infosys' HR department which "confirmed that Infosys' foreign employees could not work in the United States on B-1 visas."

Palmer refused to write the letter.

Following his refusal, Palmer contends that he was threatened and harassed, receiving telephone "calls just hoping he'd die, 'you need to keep your mouth shut and leave us alone' - stuff of that nature," said his attorney, Kenneth Mendelsohn, who's based in Montgomery, Ala. The lawsuit also says he has had to "endure racial taunts or slurs, including being called 'a stupid American' and criticized for being a Christian."

There were also issues with pay, expense reimbursement and hours alleged in the lawsuit. Palmer also charged that the company failed to act on his complaint to its internal whistleblower team.

Palmer, an Alabama resident, filed the lawsuit in Lowndes County Circuit Court in the state. According to his resume, Palmer's job at Infosys involves account and program management and he received the "prestigious Infosys Actionize" award in second quarter of 2010. He continues to work for Infosys.

Mendelsohn said that authorities have been told about the threats, though he declined to disclose the identity of the agencies that were contacted. He is still awaiting Infosys' response.

Infosys said it couldn't comment on pending litigation.

According to a recent investor filing with the government, Infosys is a major user of the H-1B visa -- a majority of its technology professionals in the U.S., about 9,300, hold such documents.

Offshore firms mostly use the H-1B, and to a lesser extent the L-1 visa, for employee transfers.

But the use of the B-1 visa in IT work may be becoming common.

Bright Futures, a group that advocates for H-1B restrictions says it sees many IT job ads on Indian sites that specifically ask candidates about their B-1 visa status. The group has long drawn attention to problematic job ads, such as "H-1B only" listings for U.S. positions,

"Their ads convey a sense of urgency that's lacking in ads posted for Americans," said Donna Conroy, Bright Future Jobs executive director. "Many of these ads need to fill their U.S. job openings within 15 days - only accomplished through business or tourist visas. Most of these ads reveal that these are short-term projects - 3 to 6 months."

These job ads seeking B-1 visa holders for technology work in the U.S. seem widely advertised on India jobs boards.

The B-1 visas are much cheaper, faster and easier to get than an H-1B visa, said Daniel Costa, an immigration policy analyst at the Economic Policy Institute.

"It would, in fact, be easy to use B-1 visas in ways that were not intended, because once it's been approved, the employers can do almost whatever they want with it - without having to worry about any systematic oversight, or audits or check-ups" from federal agencies, he said.

"If a consular office suspects abuse, under its own discretion it could investigate but there's not a lot of evidence on how rare or common this might be. I haven't heard or read of many," Costa added.

By law, the B-1 has limited uses, said immigration experts.

Marko C. Maglich, a White & Case immigration attorney, uses this analogy to describe the limits on a B-1 visa holder: Imagine a foreign tailor who makes custom suits. "He can come over on the B-1 and take the measurements, meet the clients, take the order. He has to go back home to make the suit, because his work and profit center are abroad," he said.

There uses for the B-1 visa that could put a worker on a customer site for months.

For instance, contracts to buy a big piece of welding equipment from Germany or Switzerland could require the seller to maintain the machines. "Sometimes you are going to send somebody over for a couple of months to work on that machine," said Maglich. But that B-1 visa provision is limited to machines, equipment -- tangible goods. Applying it to software would be a stretch, he added.

There is also a "B-1 in lieu of H-1B" provision in the law that can permit some to short-term work assignments to fill a gap if the applicant "can demonstrate at the embassy that you are going to be coming just for a short-time to fill this gap," said Maglich

But Maglich said these "B-1 in lieu of H-1B" uses is "not something you normally do on a H-1B visa," he said.

Ron Hira, an associate professor of public policy at the Rochester Institute of Technology, said B-1 visas are attractive to companies because, among other things, they lack wage requirements (H-1B workers have to be paid prevailing wages), have minimal scrutiny, particularly at a time when H-1B and L-1 visas are getting more scrutiny.

If an Indian firm has sent a B-1 employee to a client site, the companies they contract with aren't likely to ask about visa status, "and no government agency is going to be conducting regular audits on the back end looking for the misuse of B-1 visas - so the outsourcing company has little to worry about - unless a whistleblower with evidence can prove that they did this or if the B-1 issuing consulate suspects something," said Costa.

Sarah Hawk, who heads the immigration practice at Fisher & Phillips said there remain gray areas in the B-1 law. Immigration laws haven't necessarily changed, but how they are interpreted is ongoing, something the lawsuit against Infosys case may influence.

The Infosys lawsuit may have an impact B-1 visa because it involves a large outsourcing firm, said Hawk. A case such as this, "will typically affect further guidance from immigration - it's going to be an interesting case, I think," she said.

Patrick Thibodeau covers SaaS and enterprise applications, outsourcing, government IT policies, data centers and IT workforce issues for Computerworld. Follow Patrick on Twitter at @DCgov, or subscribe to Patrick's RSS feed . His e-mail address is pthibodeau@computerworld.com.